Phillips v. State

MORRISON, Presiding Judge.

The offense is assault with intent to rape; the punishment, two years.

Our able State’s Attorney has confessed error herein. By bill of exception No. 2 it is shown that the appellant was not present when his motion for new trial was overruled,, that he was in- jail, and that he did not waive his right to be present at the proceedings. His presence is requisite under such circumstances. Article 580, V.A.C.C.P.; Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902; Manual of Reversible Errors in Texas Criminal Cases, Sec. 362, p. 350.

The trial court attempted to qualify…